96 Mo. 582 | Mo. | 1888
This cause and the proceedings, out of, and connected with it, have been before this court on four different times. It was originally a suit by eje’ctment against Louis Dixon, as sole defendant, to recover lot 4, block 11, in the town of Butler, Bates county. Among other defenses, the answer set up an outstanding equitable title to the lot in controversy. The cause was tried by the court, and the finding was against the equitable defense, and judgment was entered for the plaintiff, from which defendant Dixon appealed. The judgment was rendered on April 11, 1876, and the appeal was taken without any appeal bond having been given by Dixon. On the hearing of this appeal, the judgment was reversed, the court, in its opinion, sustaining the equitable title and holding that the lot in question belonged to Elizabeth Dixon, the wife of said Louis Dixon, and remanded the cause with directions that she might be made a party, and that when made a party, the court should, by its- decree, invest her with the title. The case is reported in 70 Mo. 381. Mrs. Dixon was thereupon, when the cause was redocketed in.
When this mandate was filed in the circuit court,. the Dixons filed a motion asking the court to enter a decree divesting the plaintiff of all title to the lot in question, and investing Mrs. Dixon with the title; also to order that she be restored to possession, and also to assess the value of the rents and profits for defendants from 1876 to that time. The circuit court, by its judgment rendered on July 24, 1882, sustained said motion in part, by ordering that Dixon be restored to the possession of the lot and that a writ issue for that purpose; and by vesting the title to the lot in Mrs. Dixon. So much of the said motion as requested an assessment of the rents and profits was continued to the next term of the court. Pursuant to the judgment on this motion, a writ of execution was issued against John Atkison, which was executed on July 31, 1882, by putting A. Henry, defendant’s attorney, in possession.
At the November term, 1882, of said circuit court, plaintiff Atkison filed his motion to quash said execution issued and executed as aforesaid, which was overruled
The per curiam opinion, disposing of said appeal and writ of error, is not reported nor published and is as follows : “This case is here now on appeal by John Atkison, because the Cass circuit court complied with the peremptory writ of mandamus from this court, and the case is also taken up by writ of error by defendants because the court failed to allow the rents to defendants for the time plaintiff wrongfully held the premises, from March, 1876, to December 19, 1882. The judgment appealed from by Atkison is affirmed on the authority of Atkison v. Dixon, 70 Mo. 381, and State ex rel. v. Givan, 75 Mo. 516. The judgment on enquiry of damages is reversed, and the cause remanded, and the circuit court directed to ascertain the rental value of the lot in dispute, without regard to buildings thereon, from the date at which John Atkison obtained possession of the same under the judgment of the circuit court until defendants were restored to the possession thereof; and also ascertain the rental value of any buildings erected upon said lot by said Atkison after the rendition of the judgment by this court in Atkison v. Dixon, 70 Mo. supra ; and allow and award the rental value of said buildings to Mrs. Dixon from the date of their erection to the date of her restoration to the possession of said lot.”
It appears from the record, that the mandate accom- * panying this opinion, was, on the ninth of July, 1885, filed in the circuit court, and that the enqxiiry as to rents and profits stood over till the July term, 1886, of said court, at which time Atkison offered to file an answer to
The point is made in the brief of counsel that the court erred in not allowing plaintiff to file answer to the motion of Dixons above set forth. The action of the trial court in this respect is not made, in the motion for new trial, a ground for new trial, neither is it assigned for error in the assignment of errors, and need not therefore be considered.
On the trial, plaintiff offered in evidence the j udgment rendered by the Bates county circuit court in 1876, in his favor against Louis Dixon, in which the monthly value of the premises in dispute was fixed at eight dollars. This evidence was objected to, the court sustained the objection and refused to receive it, and this action is claimed to be erroneous. The judgment thus offered was reversed by this court in the opinion reported in 70 Mo. supra, whereby the same became a nullity, and thereafter conferred no rights, and had no vitality for any purpose. Crispen v. Hannovan, 86 Mo. 167-8; Freeman on Judg. sec. 481. At the time said judgment was rendered Mrs. Dixon was not a party to the suit, and, as to her, the judgment was res inter alios aeta. Henry v. Woods, 77 Mo. 277.
Neither was there error in the action of the court in refusing to receive in evidence the intervening petition
But one question, as we understand the per curiam opinion supra, was left open for investigation between John Atkison and the Dixons, and that was as to the value of the rents and profits of the premises in dispute, and this upon the trial the court ascertained from the evidence, which warranted a judgment for the amount stated in it, as the ground rent of the lot in dispute from 187G to 1882. The title to Mrs. Dixon to the said lot was established by the opinion of this court rendered in 1879 ( 70 Mo. supra), which necessarily established her right to the rents and profits of it while kept out of possession by plaintiff, and this is all that the judgment accords to her after long and tedious, if not vexatious, litigation, which it was the purpose of the per curiam opinion referred to, to end by restricting the enquiry, as it was in the circuit court, to the value of the rents and profits.
■ Judgment affirmed